McKinnon v. Fuller
| Decision Date | 20 April 1914 |
| Citation | 146 N.W. 910,33 S.D. 582 |
| Parties | McKINNON v. FULLER et al. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Potter County; J. H. Bottom, Judge.
Action by Archie D. McKinnon, administrator of Allen L. McKinnon deceased, against George W. Fuller and another. From a judgment for plaintiff, defendants appeal. Modified and affirmed.
D. J O'Keeffe, of Gettysburg, A. C. Ackers and M. Moriarty, of Redfield, for appellants.
Fisk & Sargent, of Gettysburg, for respondent.
One Allen L. McKinnon, during his lifetime and until his death was the owner in fee of a quarter section of land in Potter county. In the month of October, 1893, he died intestate, in the state of Washington, leaving the quarter section of land in Potter county, as a part of his estate. On the 22d of October, 1910, Archie D. McKinnon, plaintiff, was appointed administrator of the estate of the deceased, by the county court of Potter county, and brings this action as such administrator. At the time this action to quiet title was brought, the plaintiff and one J. C. McKinnon, his brother, were sole surviving heirs of the deceased. Later the plaintiff purchased his brother's interest, and now is the sole claimant of said land. Defendants by their answer, admit claim to the land, and allege title in themselves, through a county treasurer's certificate of tax judgment sale, issued by the county treasurer of Potter county at the scavenger tax sale on November 6, 1901, to one Ellis, through whom and his grantees, defendants claim fee-simple title. The trial court made findings of fact, conclusions of law, and decree in plaintiff's favor, and defendants appeal.
Appellant's assignments of error are grouped under five heads: First, irregularities in the proceedings and judgment under which the scavenger tax sale was made; second, invalidity of the scavenger tax certificate as conferring title because of the failure of the certificate holder to serve and file proper affidavit of service of notice of maturity; third, the allowance of damages for use and occupancy of the land; fourth, as to the amount allowed defendants under their tax lien; fifth, as to the right of plaintiff to maintain an action to quiet title without first making an offer to redeem, and a sufficient tender.
We shall consider these matters in the order named. The plaintiff alleged and the court found various irregularities in the tax proceedings and judgment prior to the issuance of the tax sale certificate. Section 18 of the Scavenger Sales Act (Laws 1901, c. 51), however, declares that: "The validity of any sale shall not be called into question unless the action *** shall be brought *** within two years from the date of the sale." It is not disputed in this case, that the land was subject to taxation, was assessed for taxes for the years included in the sale, and that more than two years elapsed after the date of the sale and certificate, before the beginning of this action. Under the decision in Sandys v. Robinson et al., 26 S.D. 281, 128 N.W. 484, respondent is barred by the statute from questioning the validity of appellant's sale certificate, and the alleged irregularities in the tax judgment and sale require no further consideration. The findings of the trial court as to such irregularities must be held to be immaterial, and cannot be considered for the purpose of sustaining respondent's judgment.
The questions presented under the second group of assignments are mainly relied on by appellants as grounds of reversal. The trial court found that there never was filed in the office of the clerk of the circuit court of Potter county any notice of the maturity of the tax sale certificate; that there is on file in said office a paper, entitled "Affidavit of Publication," to the face of which there is pasted a newspaper clipping purporting to be such a notice, but that no additional affidavit required by section 1849 of the Political Code was attached to the so-called Affidavit of Publication. Appellant apparently is attempting to question the sufficiency of the evidence to sustain these findings. He refers to a certain page of the record containing an exhibit as follows: Appellant contends that this certificate establishes the fact of the filing of proof of publication of the notice of maturity of the tax sale certificate in the office of the clerk of the circuit court, and that the presumption of regularity of official acts is sufficient to show that the ex rel. affidavit was attached to the affidavit of publication when the same was filed in the clerk's office. Appellant further contends that there is no evidence that an ex rel. affidavit was not attached to the affidavit of publication when the same was filed. Upon these grounds alone it is urged that the finding of the trial court that the additional affidavit required by section 1849 of the Political Code was not attached to the affidavit of publication is not sustained by the evidence. The printed record before us does not purport to contain any of the evidence except the alleged certificate of the clerk of the circuit court, and appellant relies wholly upon the recitals therein, and the presumption of regularity of official acts, to reverse the finding of the trial court. The law does not authorize nor direct the clerk to make a record of the matters recited in this so-called certificate, nor does it require the making or filing of any such certificate. Where there is no statutory authority for the making of a record or certificate by a public officer, a record or certificate of an officer is incompetent and inadmissible as evidence. Davis v. Davis, 24 S.D. 474, 124 N.W. 715; State v. Flagstad, 25 S.D. 337, 126 N.W. 585; Murray v. Johnson, 28 S.D. 571, 134 N.W. 206. The certificate of the clerk of the circuit court was therefore incompetent to prove the fact of filing of the affidavit of publication, and therefore would not sustain the inference drawn from its recitals.
It will also be observed that the certificate itself does not recite the filing of an affidavit of publication. The recital is, in substance, that proof of "due and legal service of notice of publication of the written certificate has been filed in my office in accordance with the provisions of section 15, chap. 51, Laws of 1901." What the clerk considered "proof of due and legal service" is not stated. The purported certificate is wholly incompetent as an instrument of evidence. The record being silent, we may, however, assume that the instrument was received in evidence without objection on the part of respondent. But when the trial is to the court, as in this case, it will be presumed that the court disregarded incompetent evidence, and based its finding upon competent evidence, unless it be made affirmatively to appear that no competent evidence was received which could sustain the finding. Mead v. Melette, 18 S.D. 523, 101 N.W. 355; Bowdle v. Jencks, 18 S.D. 80, 90 N.W. 98; Easton v. Cranmer, 19 S.D. 224, 102 N.W. 944; Merager v. Madson, 19 S.D. 400, 103 N.W. 650; In re McClellan, 20 S.D. 498, 107 N.W. 681.
The printed record before us does not purport to contain all the evidence, or to show affirmatively that there was no competent evidence to sustain the findings of the courts. The findings of the trial court are presumed to be correct and to be sustained by sufficient and competent evidence. Crouch v. Dakota W. & M. R. Co., 18 S.D. 540, 101 N.W. 722; Custer County Bank v. Custer County, 18 S.D. 274, 100 N.W. 424. A preponderance of evidence against the trial court's findings must be made to appear, from the record presented on appeal, to overcome the presumption that the facts found are fully justified. Clark v. Conners, 18 S.D. 600, 101 N.W. 298. The findings of the trial court that no ex rel. affidavit was attached to and filed with the affidavit of publication, we think, must be sustained.
In Sandys v. Robinson, 25 S.D. 281, 128 N.W. 484, this court held that the filing of an affidavit of publication of notice of maturity of a tax sale certificate issued upon a scavenger tax sale, without attaching thereto and filing therewith the ex rel. affidavit as to fees for publication required by section 1849, Rev. Pol. Code,...
To continue reading
Request your trial